Bivens Actions against Private Actors
Bivens actions may be brought against private entities operating under color of federal law in the same what that §1983 claims may be brought against persons acting under color of state law. One court summarized the tests for acting under color of federal law:
As already noted, Bivens applies to constitutional violations committed by private parties only if they act "under color of federal law"; or, put another way, only if the parties are "federal actors". The tests employed for determining whether a private party acts under color of federal law are similar to the tests employed for determining whether a private party acts under color of state law. Nwanze v. Phillip Morris, Inc., 100 F. Supp. 2d 215, 220 (S.D.N.Y. 2000) (courts treat Bivens actions and § 1983 actions as analogous for most purposes), aff'd, 2001 U.S. App. Lexis 7502, 2001 WL 409450 (2d. Cir. Apr. 23, 2001).
These tests include the "direct links" test, Lebron v. Nat'l Railroad Passenger Corp., 513 U.S. 374, 397-400, 130 L. Ed. 2d 902, 115 S. Ct. 961 (1995) (a direct link between private corporation and federal government establishes that corporation acted under color of federal law); the public function test, Rendell- Baker v. Kohn, 457 U.S. 830, 842, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982) (a private party performing a function traditionally the exclusive prerogative of the government is a government actor); the nexus test, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974) (a private party is a state actor when there is a sufficiently close nexus between the government and the challenged action of the private party that the action of the private party is fairly treated as that of the government itself); and the symbiotic relationship test, Burton, 365 U.S. at 862 (a private party is a state actor when the government has so far insinuated itself into a position of interdependence with that party that the government must be recognized as a joint participant in the challenged activity) [Sarro v. Cornell Corrections, Inc., 248 F.Supp.2d 52,59 (D.R.I. 2003)]
Correctional Serv. Corp. v. Malesko, 534 U.S. 61 (2001) held that a Bivens suit can not sustain an action for damages against private entities acting under color of federal law. The case involved an alleged violation of a prisoner’s constitutional rights in a federal prison operated by a private corporation. The court rejected the claim against the corporation because the history of Bivens actions is one of claims against individuals to deter individual bad behavior. However, the Court recognized that other remedies were available against the corporation, such as a suit for injunctive relief in district court or a private state tort remedy unavailable to prisoners in a government- run prison.
In Sarro, the court also dismissed Bivens charges brought by a federal prisoner against the private corporation which ran the prison. Yet the guards were held liable because the prisoner had no alternative remedy against them, although the guards were not federal officers. The guards were acting under color of federal law since they were performing functions normally done by federal officers. This was consistent with the policy of Bivens to discourage individual bad behavior. Other courts have rejected Bivens liability for private prison guards and the circuits remain split as of 2009.[Bender v. General Services Administration, 539 F.Supp.2d 702 (S.D.N.Y. 2008) ]
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